Hendrik Willem ten Cate v. Al Jazira Football Sports Company

II. FACTUAL BACKGROUND — A. Background Facts

4. Below is a summary of the relevant facts and allegations as established by the Panel on the basis of the decision rendered by the Single Judge of the Players’ Status Committee (the “FIFA PSC”) on 16 April 2019 (the “Appealed Decision”), the written and oral submissions of the Parties and evidence adduced. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, the Panel refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

5. On 13 July 2015, the Parties signed a Head Coach Employment Agreement (the “Initial Contract”), valid as from 1 January 2016 until 1 June 2016. Shortly afterwards, the Parties concluded a second Head Coach Employment Contract (the “Contract”), valid as from 1 July 2016 until 30 June 2018.

6. The Contract stated, inter alia, as follows:

“5.1 A monthly salary of [EUR 135,000] (net of UEA INCOME TAX) will be paid to [the Coach] during the first week of each month […]

Annual signing fee of [EUR 180,000] net of UEA income tax, the first signing fee shall be payable during August 2016, and the second contractual year the signing fee of [EUR 180,000] will be paid during the first week from July 2017.

[…]

5.2.1 For any official match victory by Al Jazira in the Asian Champions League, AGL or President’s Cup, and the UEA League cup, the [Coach] shall be entitled to receive a bonus equal to 100% from one of the player’s bonus in Dirhams, i.e. if one player receive 15,000 AED for the official winning then the [Coach] will be entitled to receive 15,000 AED.

[…]

5.7 The bonuses for winning the AGL, and the President’s Cup and the winning of the AFC shall be as per attachment”.

7. In May 2017, the Parties agreed to raise the monthly salary of the Coach for the period from 1 July 2017 until 30 June 2018 to EUR 193,334 in addition to the annual signing fee of EUR 180,000.

8. The Parties are in agreement that the said negotiations between the Coach and his legal adviser, Mrs Ester Bóinck, on the one side, and Mr Binbutti, the then President of the Club and Mr Al Fatah, the Club’s Sports Legal Affair Manager, on the other side, also included negotiations regarding other bonuses, whereas the Parties are not in agreement about whether or not the Parties actually reached an agreement regarding such bonuses.

9. During and following the said negotiations, Annex (2) (Head Coach Employment Contract) (“Annex 2”) to the Contract was drafted, but this annex was apparently not signed by the Parties in connection with the negotiations. However, Mr Binbutti allegedly affixed his signature opposite the amounts written by hand under clause B.7. Whether both Parties subsequently signed Annex 2 is another issue in dispute.

10. Annex 2 stipulated, inter alia, as follows:

“Clause 1:

A. This annex is a part and integral to [the Contract] of the [Coach and the Club] which started already on 1 July 2016, and is a formal part of the remuneration as mentioned in article 5.8 both parties herein agreed on amending the annual salary mentioned in article 5.1 to be Two Million and Five Hundred thousand Euro (only 2,500,000 EURO) to be divided as an annual signing fee of EUR 180.000 payable as per 1 July 2017 and 12 monthly instalments of EUR 193.334, starting from the July 2017 till 30 June 2018, i.e. the previous annual salary of 1.8 million Euro is amended and cancelled to be 2.5 million per annum.

B. Both parties herein agreed on the bonuses of the season 2017/2018 to be as follows:

[…]

7. Clubs world Cup Champion 2017:

a) 30,000 Euro – 40 [inserted in handwriting]

b) 60,000 Euro – 80 [inserted in handwriting]

c) 120,000 Euro – 160 [inserted in handwriting]

d) 240,000 – 350. [inserted in handwriting]

Clause 2:

Other clause articles, terms and conditions within the employment contract signed by both parties which already started on 1 July 2016 will remain without any changes.

All bonuses are cumulative and payable the latest 30 days after the end of the relevant season”.

11. The Contract was not renewed between the Parties and expired automatically on 30 June 2018.

B. Proceedings before the FIFA Players’ Status Committee

12. By petition to the FIFA PSC of 14 November 2018, the Coach submitted that despite several reminders to do so, the Club had failed to meet its financial obligations to the Coach as follows:

EUR 193,000 (net salary for the month of June 2018)

EUR 180,000 (net annual signing fee payable as at 1 July 2017)

EUR 120,000 (net bonus for Club World Cup Champion 2017)

EUR 62,000 net (17 times match bonus at AED 15,000 per match).

13. Based on the above the Coach requested that the FIFA PSC:

a) “Declares that [the Club] is in breach of its financial obligations under the [Contract];

b) Order [the Club] to pay the amount of EUR 1,127,217.31 gross (EUR 555,000 net) or any other amount [the FIFA PSC] deems to be reasonable to [the Coach] […];

c) Order [the Club] to pay the legal costs incurred by [the Coach] amounting to EUR 25,000 exclusive of VAT;

d) Order [the Club] to pay all costs […]”.

14. In its reply, the Club did not challenge the Coach’s claim that the amounts of EUR 193,000 and EUR 180,000 were outstanding.

15. However, with regard to the alleged victory match bonuses (the “Match Bonus”), the Club explained that it has a discretionary policy of payment of bonuses to the players and that the Coach had failed to provide evidence that such victory match bonuses were paid to the players in the 17 matches for which the Coach requested payment of a similar bonus.

16. Finally, the Club submitted that the Coach is not legally entitled to receive any Club World Cup Champion 2017 bonus.

17. The Single Judge of the FIFA PSC, after having confirmed his competence, concluded, inter alia, that the 2018 edition of the Regulations on the Status and Transfer of Players (the “Regulations”) was applicable to the case.

18. In relation to the amounts of EUR 193,000 and EUR 180,000, the Single Judge observed that, in its reply, the Club acknowledged the existence of the related debt. Therefore, and since this

part of the claim thus remained undisputed, and taking into consideration the legal principle of pacta sunt servanda, the Single Judge established that the Club had to pay to the Coach the outstanding amount of EUR 373,000 (i.e. EUR 193,000 + EUR 180,000).

19. With regard to the amounts claimed for the Club World Cup Champion 2017 (EUR 120,000) and for the 17 times victory match bonuses (EUR 62,000), the Single Judge referred to the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, according to which the burden of proof lies with any party claiming a right on the basis of an alleged fact.

20. In application of the said principle, and after having examined the documentation on file, the Single Judge observed that the Coach had failed to provide any evidence to prove that the conditions entitling him to the possible bonuses were met.

21. Hence, the Single Judge came to the conclusion that the request of the Coach related to the payment of outstanding bonuses had to be rejected for lack of proof.

22. On 16 April 2019, the Single Judge of the FIFA Players’ Status Committee rendered the Appealed Decision and decided, in particular, that:

“1. The claim of [the Appellant] is partially accepted.

2. [the Respondent] has to pay to [the Appellant] within 30 days as from the date and notification of the present decision, the total amount of EUR 373,000 “net of UEA income tax”.

3. If the aforementioned sum is not paid within the aforementioned deadline, interest at the rate of 5% p.a. will fall due and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any other requests lodged by [the Appellant] are rejected.

5. […]

6. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

6.1 The amount of CHF 5,000 has to be paid by [the Appellant]. […]

6.2 The amount of CHF 15,000 has to be paid by [the Respondent]. […]”.

23. On 17 June 2019, the grounds of the Appealed Decision were communicated to the Parties.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

24. On 4 July 2019, the Appellant filed its Statement of Appeal in accordance with Articles R47 and R48 of the CAS Code of Sports-related Arbitration (the “CAS Code”) against the Respondent with respect to the Appealed Decision.

25. On 15 July 2019, the Appellant filed its Appeal Brief in accordance with Article R51 of the CAS Code.

26. On 14 August 2019, and in accordance with Article R54 of the CAS Code, the Parties were informed by the CAS Court Office that the Panel had been constituted as follows:

President: Mr Lars Hilliger, Attorney-at-Law in Copenhagen, Denmark

Arbitrators: Mr Manfred Peter Nan, Attorney-at-Law in Arnhem, the Netherlands (nominated by the Appellant)

Mr Rui Botica Santos, Attorney-at-Law in Lisbon, Portugal (nominated by the Respondent)

27. On 5 September 2019, the Respondent filed its Answer in accordance with Article R55 of the CAS Code.

28. On 28 October 2019, the CAS Court Office sent the parties the Order of Procedure, which was returned signed on 31 October 2019 and on 4 November 2019 by the Appellant and the Respondent, respectively.

29. On 12 November 2019, a hearing was held in Lausanne, Switzerland.

30. In addition to the Panel, Mr Daniele Boccucci, counsel to the CAS, the following persons attended the hearing:

For the Appellant:

- Mr Hendrik Willem ten Cate

- Mr Harro J. A. Knijff, legal counsel

- Mrs Ester Bóinck, witness

For the Respondent:

- Mr Bernardo Palmeiro, legal counsel

31. At the outset of the hearing, the Parties confirmed that they had no objections to the constitution of the Panel.

32. The Panel heard the evidence of the Coach and Mrs Ester Bóinck, witness called by the Coach, who was invited by the President of the Panel to tell the truth subject to the sanctions of perjury under Swiss law. The Parties and the Panel had the opportunity to examine and crossexamine both the Coach and the witness.

33. The Parties were afforded ample opportunity to present their case, submit their arguments and answer the questions posed by the Panel.

34. After the Parties’ final submission, the Panel closed the hearing and reserved its final award. The Panel took into account in its subsequent deliberations all the evidence and arguments presented by the Parties although they may not have been expressly summarised in the present Award.

35. Upon the closure of the hearing, the Parties expressly stated that they had no objections in respect of their right to be heard and to have been treated equally and fairly in these arbitration proceedings.

IV. PARTIES’ SUBMISSIONS AND REQUESTS FOR RELIEF — A. The Appellant

36. In its Appeal Brief, the Appellant requested the following relief from the Panel:

“(I). To quash [the Appealed Decision] with respect to the rejection of [the Appellant’s] claim of EUR 120,000 net 2017 FIFA Club World Cup bonus and the rejection of [the Appellant’s] claim of EUR 62,000 net 17 times victory match bonus and to order [the Respondent] to pay these bonuses to be increased by payment of an interest rate of 5% per annum from 1 July 2018 to the date of full payment;

(II). To confirm [the Appealed Decision] with respect to the acceptance of [the Appellant’s] claim in the amount of EUR 373,000 “net of UAE income tax”, to be increased by payment of an interest rate of 5% per annum as of the date of indebtedness to the date of full payment, which means payment of the above-mentioned interest rate of 5% per annum over an amount of EUR 193,000 net as of 1 July 2018 and over an amount of EUR 180,000 net as of 1 July 2017;

(III). To order [the Respondent] to pay the costs of the arbitration proceedings, including but not limited to the CAS Court Office fee, the administrative costs of the CAS, the costs and fees of the arbitrators, the fees of the ad-hoc clerk, if any;

(IV). To order [the Respondent] to pay the costs of arbitration on the part of [the Appellant] with respect to the Players’ Status Committee procedure amounting to CHF 5,000;

(V). To order [the Respondent] to pay the costs of legal assistance on the part of [the Appellant], estimated at 10% of [the Appellant’s] claim on [the Respondent]; and

(VI). To make any provision CAS deems justified in the given circumstances”.

37. The Appellant’s submissions, in essence, may be summarised as follows:

- Pursuant to the Appealed Decision, the Respondent is liable to pay to the Appellant, within 30 days of the notification of the Appealed Decision, the amounts of EUR 193,000 and EUR 180,000 subject to interest at the rate of 5% p.a. as from the said due date.

- Despite the Respondent having recognised its payments obligation, by the date of the hearing, the Appellant has still not received the outstanding amounts from the Respondent, either in part or in full, and it is therefore only fair that the Respondent is ordered to pay to the Appellant interest at the rate of 5% p.a. as from the dates when the above-mentioned amounts originally fell due, i.e. interest on EUR 180,000 as from 1 July 2017 and on EUR 193,000 as from 1 July 2018.

- With regard to the 2017 FIFA Club World Cup Bonus (the “Club World Cup Bonus”), this bonus was negotiated between the Parties at the same time in May 2017 as when the Parties agreed to raise the Appellant’s annual salary.

- There is no dispute between the Parties regarding their agreement to raise the annual salary, which is also included in Annex 2, and, apart from the salary covered by the Appealed Decision, the Appellant was paid his salaries by the Respondent in accordance with this agreement.

- The Appellant and his legal adviser, Mrs Ester Bóinck, on the one side and Mr Binbutti on the other side agreed that the Appellant should be entitled to bonuses for each victory of the Respondent’s team in the 2017 FIFA Club World Cup, which amounts were then written by hand in Annex 2:

“Both parties herein agreed on the bonuses of the season 2017/2018 to be as follows:

[…]

7. Clubs world Cup Champion 2017:

a) 30,000 Euro – 40

b) 60,000 Euro – 80

c) 120,000 Euro – 160

d) 240,000 Euro– 350”.

- Since it is undisputed that the team of the Respondent did in fact win two matches at the 2017 FIFA Club World Cup in December 2017, the Appellant is entitled to receive his Club World Cup Bonus in the amount of EUR 120,000 plus interest at the rate of 5% p.a. as from the due date of 1 July 2018.

- With regard to the match victory bonus, pursuant to the Initial Contract, the Appellant was entitled to receive a bonus of AED 15,000 “For any official match victory by Al Jazira in the Asian Champions League, AGL or President’s Cup”.

- The Appellant always received the relevant victory bonus in the normal way during the initial contract period from 1 January 2016 until 1 June 2016.

- As a result of the higher bonuses to the players of the team, the wording in the Contract was amended to read as follows: “For any official match victory by AL Jazira in the Asian Champions League, AGL or President’s Cup, and the UEA League cup, the [Coach] shall be entitled to receive a bonus equal to 100% from one of the player’s bonus in Dirhams, i.e. if one player receive 15,000 AED for the official winning then the [Coach] will be entitled to receive 15,000 AED”.

- As such, the starting point is that the Appellant is entitled to receive a bonus from the Appellant for every match won by the team, and it is consequently not correct that it is at the discretion of the Respondent to decide whether or not to pay the victory bonus to the Appellant.

- The amount of each bonus payable to the Appellant has also been determined, namely 100% of the bonus a player of the team is entitled to receive.

- The Club has never denied that the players of the team of the Appellant were entitled to receive/did in fact receive a bonus for each match won by the team. However, the Respondent never informed the Appellant of the amount of such bonuses the players were entitled to receive/actually received during the 2017/2018 season.

- It is not for the Appellant to prove that the players of the Respondent were entitled to or did in fact receive such bonuses in order for the Appellant to be entitled to receive his own victory match bonuses.

- It is undisputed that the team of the Respondent won 17 matches during the 2017/2018 season.

- As the entitlement of the Appellant to receive his victory match bonuses is agreed upon in the Contract, and since the Respondent did not provide the requested transparency regarding the size of the bonuses to the players of the team during the 2017/2018 season, the Appellant is entitled to receive at least the amount of AED 15,000 for each of the 17 games won by the team of the Respondent.

B. The Respondent

38. In its answer, the Respondent requested the Panel to:

“1. Dismiss the appeal lodged by [the Appellant] in full;

2. Confirm the [Appealed Decision].

3. Rule that the costs of these proceedings shall be paid by [the Appellant] in full and he shall pay a contribution to [the Respondent’s] legal fees and other costs in the amount considered appropriate”.

39. The Respondent’s submissions, in essence, may be summarised as follows:

- It must be stressed that the burden of proof lies with any party claiming a right on the basis of an alleged fact.

- Based on that, there is no doubt that it is for the Appellant to prove that the Respondent has the obligation to execute the payment of the requested bonuses.

- With regard to the Club World Cup Bonus, the Respondent does not dispute that the Parties were engaged in negotiations regarding such potential bonus and that the Annex 2 was drafted during and following such negotiations.

- However, the Parties never reached a final agreement, and Annex 2 was never signed by the Parties.

- Thus, no agreement was concluded between the Parties in this regard, and the Appellant is not contractually entitled to receive such alleged bonus.

- The Appellant failed to prove that any agreement was reached, and it is not sufficient to argue that the Respondent never disputed the alleged obligation to pay such bonus.

- In any case, the Respondent agrees with the Singe Judge in the Appealed Decision that the alleged conditions for granting this bonus are rather unclear.

- Based on that, the Appellant is not entitled to receive any Club World Cup Bonus from the Respondent.

- With regard to the match victory bonus, the Appellant has failed to adduce evidence proving that such match victory bonuses were actually ever paid to the players of the team for its victory during the 2017/2018 season.

- Based on that, the Respondent agrees with the Single Judge in the Appealed Decision that the Appellant’s claim should be rejected for lack of proof of the Appellant’s alleged entitlement to be paid such bonuses himself.

- Finally, with regard to the Appellant’s claim for interest from the original due date of the amounts of EUR 193,000 and EUR 180,000, this claim should be rejected since the Appealed Decision already decided on this matter and awarded interest as from the date of the notification of the Appealed Decision.